Alberta challenges bill requiring top court judges to be bilingual
Canadians' trust in the Supreme Court is at risk, Justice Minister says
By Alison Redford, The Edmonton Journal
June 10, 2010
A bill currently before Canada's Senate represents a serious risk to the interests of western Canadians, to the proper function of the Supreme Court, and to the integrity of the justice system.
Recently, I wrote the federal minister of justice about Bill C-232, An Act to Amend the Supreme Court Act. Introduced as a private member's bill by an NDP MP from New Brunswick, Bill C-232 would require all Supreme Court justices in Canada to be bilingual.
I wrote the federal minister in the hope that there is still time to revisit the bill's wisdom before it leaves the Senate and is proclaimed into law.
As a country with two official languages, French and English, it makes sense that Canada's central institutions be able to function in both languages. This is a policy that Alberta respects. However, Bill C-232 introduces a new concept of bilingualism in Canada and our courts.
Historically, bilingualism has meant that Canadians have the right, in designated areas, to receive services from federal institutions in either English or French.
But there's a world of difference to move from requiring institutions to provide services in both languages to requiring that all members of the institution be fluently bilingual.
I appreciate the symbolic importance of the Supreme Court. Having fluently bilingual justices on the court is an important reflection of Canada's linguistic reality and is an objective that Alberta supports.
But in addition to being an important symbolic institution, the Supreme Court is first and foremost the highest appeal court in the country.
That means the overriding considerations in the selection of judges should be legal competence and individual merit. Legal competence, not proficiency in both languages, should be the determining factor. Barring unilingual Canadians from becoming Supreme Court justices is wrong.
Our particular concern in Western Canada is the risk that establishing an inflexible linguistic requirement will, for all practical purposes, prevent the vast majority of the current legal bar in the West from being considered for selection to serve on the Supreme Court. In that respect, it's worth noting that while the requirement of three justices drawn from the Quebec bar is a statutory requirement, the geographic allocation of the rest of the court -- two seats for Western Canada, three for Ontario and one for Atlantic Canada -- is a constitutional convention.
By excluding from consideration for the court most of the best legal minds in Western Canada, pursuing this kind of linguistic perfection poses the serious risk of entrenching a permanent geographic imbalance on the Court.
Alberta is currently examining whether Bill C-232's linguistic requirements would actually even be constitutional. Under the Constitution of Canada, changes to the composition of the Supreme Court require the approval of both Parliament and the provinces.
In the end, perhaps the most serious risk Bill C-232 poses is to the confidence Canadians can place in their justice system.
Part of the Supreme Court's legitimacy comes from its ability to be representative of all regions of the country. Anything that threatens its representative nature threatens the trust Canadians can place in their Supreme Court, and their justice system.
Canadians need to know their Court reflects their interests, concerns, and their diversity. Bill C-232 threatens that fundamental premise.
Changes as profound as those Bill C-232 proposes should only be done with the support of a genuine consensus of Canadians. I think it's clear that such a consensus doesn't exist today.
I'll be writing separately to the federal opposition party leaders to express Alberta's position regarding this legislation.
I encourage all Albertans to write or contact their MP and Senators to express their concern over this serious risk to Canada's justice system.
Alison Redford, Q.C., is Alberta Minister of Justice and Attorney General
Last Update : 2010-06-13
